shall the Judge give Sentence against the evidence of the Witnesses; because the Letter of the Law is to the contrary: but procure of the Soveraign that another be made Judge, and himselfe Witnesse. So that the incommodity that follows the bare words of a written Law, may lead him to the Intention of the Law, whereby to interpret the same the better; though no Incommodity can warrant a Sentence against the Law. For every Judge of Right, and Wrong, is not Judge of what is Commodious, or Incommodious to the Common-wealth.
The Abilities Required In A Judge
The abilities required in a good Interpreter of the Law, that is to say, in a good Judge, are not the same with those of an Advocate; namely the study of the Lawes. For a Judge, as he ought to take notice of the Fact, from none but the Witnesses; so also he ought to take notice of the Law, from nothing but the Statutes, and Constitutions of the Soveraign, alledged in the pleading, or declared to him by some that have authority from the Soveraign Power to declare them; and need not take care before-hand, what hee shall Judge; for it shall bee given him what hee shall say concerning the Fact, by Witnesses; and what hee shall say in point of Law, from those that shall in their pleadings shew it, and by authority interpret it upon the place. The Lords of Parlament in England were Judges, and most difficult causes have been heard and determined by them; yet few of them were much versed in the study of the Lawes, and fewer had made profession of them: and though they consulted with Lawyers, that were appointed to be present there for that purpose; yet they alone had the authority of giving Sentence. In like manner, in the ordinary trialls of Right, Twelve men of the common People, are the Judges, and give Sentence, not onely of the Fact, but of the Right; and pronounce simply for the Complaynant, or for the Defendant; that is to say, are Judges not onely of the Fact, but also of the Right: and in a question of crime, not onely determine whether done, or not done; but